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United States v. Under Seal

United States Court of Appeals, Fourth Circuit

August 22, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
UNDER SEAL, Defendant-Appellant.

          Argued: May 10, 2018

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge.

         ARGUED:

          Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

          Gustav William Eyler, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

          James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.

          Charles J. Biro, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen M. Schenning, Acting United States Attorney, Baltimore, Maryland, Bryan E. Foreman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland.

          Before TRAXLER and DIAZ, Circuit Judges, and Richard M. GERGEL, United States District Judge for the District of South Carolina, sitting by designation.

          TRAXLER, CIRCUIT JUDGE

         Appellant pleaded guilty pursuant to a plea agreement to conspiracy to commit access-device fraud, see 18 U.S.C. § 1029(b)(2), and aggravated identity theft, see 18 U.S.C. § 1028A. The district court imposed a total sentence of 49 months. Appellant appeals, arguing that the district court erred by allowing the government to decline to seek a substantial-assistance sentence reduction without following the procedure set out in the plea agreement. Finding no error, we affirm.

         I. A.

         The plea agreement executed by the parties consists of two parts - the standard plea agreement used by the United States Attorney's office in the Southern Division of the District of Maryland, and a sealed supplement containing terms specific to Appellant's case.

         Paragraph 19 of the standard-term portion of the plea agreement is entitled "Obstruction or Other Violations of Law," and provides as follows:

The Defendant agrees that he will not commit any offense in violation of federal, state or local law between the date of this agreement and his sentencing in this case. In the event that the Defendant (i) engages in conduct after the date of this agreement which would justify a finding of obstruction of justice under U.S.S.G. ยง 3C.1, or (ii) fails to accept personal responsibility for his conduct by failing to acknowledge his guilt to the probation officer who prepares the Presentence Report, or (iii) commits any offense in violation of federal, state, or local law, then this Office will be relieved of its obligations to the Defendant as reflected in this agreement. Specifically, this Office will be free to argue sentencing guideline factors other than those stipulated in this agreement, and it will also be free to make sentencing recommendations other than those set out in this agreement. As with any alleged breach of this agreement, this Office will bear the burden of convincing the Court of the Defendant's obstructive or unlawful ...

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